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The North Carolina Court of Appeals affirmed and reversed in part the disposition of summary judgment motions in a case where a judge engaged in a campaign to retain her seat sued a blogger who supported a candidate for a State Senate seat. The judge supported a different candidate.

The blogger posted a Facebook entry that accused the judge of misconduct for supporting a State Senate candidate. The entry was also posted on Carolina Talk Network. The same day, the judge's attorney informed the blogger that, as a candidate herself, the judge was allowed to endorse other office seekers.

The blogger posted a second comment apologizing for the first comment. He went on to state that he had read the North Carolina Code of Judicial Conduct "top to bottom" and asserted his belief that "for any Republican office holder to campaign openly for any candidate in a primary is wrong." He appended portions of the Code but omitted the portion that specially permits a judicial candidate to endorse another candidate for office.

The court held that the first post contaimed a false statement but there was no evidence of actual malice. Summary judgment was affirmed on behalf of the defendant blogger.

The court found that the second post was not a constitutionally protected opinion. The post stated that the defendant had consulted an attorney friend and that "[w]e both agreed that there is probable cause for such [disciplinary] action [against the judge]. Read the appendix and make up your own mind."

The defendant was found to have attempted to mislead readers by failing to attach the portion of the Code that allowed the conduct at issue.

The court here held that the second post was subject to one interpretation and was defamatory: "It was, therefore, defamation per se as a matter of law."

The court also held that there was sufficient evidence that the second post was motivated by actual malice to present the issue to a jury. (Mike Frisch)